Cozen O’Connor’s Ken Fisher on “The Baby Carriage in Front of the Bulldozer”

For any developer, perhaps the only thing harder to secure than a zoning permit is community approval. No matter how beneficial to a neighborhood a developer’s project purports to be, it’s always going to have its naysayers. And should those naysayers unite to sue the developers in an attempt to prevent the bulldozers from moving in, that’s when Kenneth Fisher, a partner at Cozen O’Connor, intervenes. The former city councilman (he served in Brooklyn from 1991 to 2001) talks about how developers can steel themselves for the inevitable community opposition.

The Commercial Observer: It seems that most, if not all, of your work is done outside the courtroom.
Mr. Fisher: A substantial part of my practice is land-use and zoning work, so those usually wind up in litigation only when there is a challenge—and those challenges usually come from some objector in the community.
For me, a recent example would be: I did the entitlements for the Dock Street DUMBO project for Two Trees. There was a litigation, which I handled and won, together with the corporation counsel’s office, obviously. Then there was an appeal for that, and we won the appeal in the Spring. And they’ve started site demolition, and they are going to start construction shortly.

So how essential is land-use litigation for developers, then?
I think the sort of macro observation that I would make is that land-use litigation over the last year or two has been “the dog that didn’t bark.” There have been challenges to most of the major actions, and some minor actions, that have come through City Planning and the City Council. Most of them have failed.

How did the opposition to the Dock Street development fail?
The proposal calls for a 17-story building in close proximity to the Brooklyn Bridge, with a 300-seat public middle school in the base, the core-and-shell of which is being donated by Two Trees. Also some neighborhood retail and parking.

There was some degree of controversy over whether views of and from the Brooklyn Bridge would be impacted. But, you know, I think that the people who were most agitated were the people whose views from their own apartments would be impacted.

While there was active organized opposition, there was also active support—as a result of which, as many people testified for the project has testified against it at the public hearings, and it was ultimately approved not just by the City Council and the Planning Commission, but it was approved by the Community Board.

A lot of the opposition dropped by the wayside when the council gave the go-ahead to the project. But there were a couple of dissidents who brought a lawsuit, and they challenged everything from the rationale of the project to the design solution that we developed with City Planning to the adequacy of the environmental assessment. All of that was dismissed at the trial court level.

If you’re, say, Jamestown Properties, how would you prepare yourself for ongoing community opposition over projects like the proposed Chelsea Market expansion?
I once published a letter in the New York Times; I said I had a dream that the mayor announced an agreement with the Almighty to build a stairway to Heaven. And when they announced the location, half the people said that it would lead to gentrification, the other half said it would bring in the riffraff, and everybody agreed that it would be bad for traffic.

The point of the story is that no matter how benign a project is, it’s going to upset somebody.

What kind of project do you think upsets people the most?
What gets attention are the “baby carriages in front of the bulldozers” projects. NYU is a situation like that, where the people who were opposed to NYU weren’t particularly interested [in] negotiating. They simply wanted to preserve Greenwich Village the way it was [yesterday].

It wasn’t a question [of] putting in a day-care center or making it bigger or smaller for a lot of them. There are others who wanted to engage, and the result was that the council got NYU to make some changes just before they gave the final go-ahead. That’s the give-and-take and the back-and-forth of the process. But it’s not Newtonian, because governments are bodies in motion that don’t always stay in motion, and reactions are never equal and opposite.